43 F1d 817

Rev. St. U. B. SS 591, 592, 596, provide that a circuit judge may appoint a district judge to hold court in another district than his own, with the same powers as the judge ot that district: "but no such shall hear appeals from the district court." Section 614, Id., provides that a district jUdge, when holding circuit court alone, may, by consent of parties, hear an appeal or writ of error from his own dllcision iIi tbe district court. Held, that a district judge, when holding circuit court; in another district byapIlointment of the circuit judge, COUld, by consent of the parties,: hear and determine a writ of error in a criminal case from the district court.

On Writ of Error from District Court. This case was submitted on the record and the following agreed statement of facts: "
"It is hereby stipulated by and between Lawl'enC'e Harmon, plaintiff.in. ror., bJ;:pattel'son and r:rtJOmas, his, attorneys, and the United StatesQf ica, by John D. Fleming, United States attorney for the district of Colorado, as follows in the above-entitled cause: "First. That a writ of error was duly sued out of the circuit court of the United States for the district of Colorado to the district court of the United States in and for said district in the above-entitled cause, and that upon the presentation of the record of said cause to thtlHonorable DAVID J. BREWER, then judge the circuit court of the United States in and for the eighth jUdicial circuit, the said the Honorable DAVID J. BREWER, as judge, did order that. the said writ.of error issued in said cause shoul4 be made to operate 88 a 8Upersedeas theretn. . : "Second. 'rhat the said cause was dUly docketed in the said circuit court for the district of Colorado, and was entered upon the docket of said circuit court as C8SIl · No. 2,493.' . "Third. That thereafter the said, the Honorable DAVID J. BREWER, liS jUdge of the circuit court, did make the following order and appointment, which was duly entered of record in the office of the clerk of the said circuit court for the district of Colorado, as follows: . " ·UNITED STATES CIRCUIT CoURT, DISTRICT OF CoLORADO. II · In my judgment, the pu blic interests so reqUiring, I do hereby designate and appoint Hon. JOHN F. PHILLIPS, United States district judge for the western dilltrict of Missouri, to hold the circuit court of the United States for .the (listl'ict of Colorado t01' thE! present term, in aid of the Hon. MOSES HAl.LETT, district jUdge of said district. " ·Witness my hand, this., the 6th day of December, A. D. 1889. . . " · DAVID J. BREWER, Circuit Judge.' II Fo.urth. That thereafter, and by v.irtue of said order and appointment,. the said Hon. JOHN F. PHILLIPs,district judge did hold this present term of the said circuit court at Den vel', in the district of Colorado. "Fifth. That upon, to-wit, the 20th day of December, 1889, it being one of dlU's of the term for which the said Hon. JOHNF. PHIl.LIPS was appointed to hold the said term of the circuit court, as aforesaid, on motion of the.plaintiff in error, and with the consent of the United States of America. attorney for said district, the said thl,'Ougb John D. Fleming, United the erJ;ors allege(j were submitted .to the 8aid. circuit court, presided over by the'· said Hon. JOHN F. PIIILLIPS alone,- under and by vir.tueofsaid

e,,·

v.43F.no.12-52

FEDERAL REPORTER,

vol.. 43.

appointment, for determination and decision, and the plaintiff in error, by his attorneys, and the UI\itedStates of America, hYJthe said John D. Fleming, United States,attorney for the district of 'Colora'do, did appear before the J:OHN as aforesaid circuit court, presided over by the said said, and did fully present by argument the said cause and errors alleged tht>rein, hoth in behalf of the said plaintiff ,in and in behalf of the said , J!1,error, and'did 'then'Iln4 there, submit thesame""tothe said court for .. '. . ' "tJi{»th.That afterwards, and upoQ, to-wit, the 5th day of March, A. D. 1890,thasame of the judicial days Of the term of,the said circuit cOurt overw hicli the . . ;Hon. J OHNF. VHILLIPS had been the said BonuTOHN E\, PHILLIPS, as said judge, and under andbyyirtue of his said appointment, did file in tile clerk's otfice of the said oircuit court in and for· said district his opinion in writing in said cause. in and by which said opinion the judKment of the said district court in said Clluse was reversed; .. and forthintbe the said detendllnt was ordered to be dlilCliarged without tiay from any further prosecution by reason of the factsalll'ged against him in the indictment, and reference!s hereby made to and to the said ol'de'rreverslng the ,said jUdgment, and or. discharge of the'said plaintiff.ip ,erroT' for parhculadt)'/'

in thi5 one diatrict,desigrJded'l!.!:ldappOibted by the circuit jUdge,'undersection 596 of 't he Revised Statutes ofthe'United States,to 'hold' circu'it cotlft iIi aiiotber districf,' in raid;of ()( that dis!luc)i with t.t;ipt,. cao,while boldipg or witb9ut the. pa:rties,hear JWd dispose ofacriminal case on error from the district court. The district judge assigned to thedut\ ()f.hoMing tlie circuit court did, infact,llear a.rid decide this case on er ,'. ,': ;,:; ·· , . '. . .. My conclusion is that under t1)e law"JiJte im'lictmentwaJl: ioslllliehmt, and the tp,ereunder be.. set alldthedefeJl<ll;\nt discharged. It is so 'oTiH!red, as any further prosec'ution would be barred by the statute of limltatioaJ·.1h : .f, .. . ,
.':t .·

.. '

", nOl'its equivalent,"has been entered of record; find the' plMtlHfHn:error moves thlitsuC'htln entry be now made as of the date of order. This motiort iSJ;esisted 'bY the district attarney,w\lo: l;llpves that theeasebe set'dbwn'for hearing before the circuit judge the'same as if it had not been heard and decided by the district h'eld the circuit 'the designl;ltion:and appointment of the cir¢\lit Judge. The section 1,ln4erwbich the district judge was reads as follows: ' "SeC:'596. It shall be the duty of every circuit' judge, whenever in his judgment the pnblic interest 80 reqUires, 'to designate'IRnd appoint, in the mannet Ilndwith the powers provided ,in: section fiVe ,htnldl'(!d and ninety-one, the district jUdge of any,ju!licial district within his circuit to hold a district 01' circuit' court in the place ol:inaidofany other district judge within tbe '" ," . same circuit. ".

B,ARMON:t1.

STATES.

819

It will be observed thatthe circuit judge is to designate and appoint the district judge "in the manner and with the powers provided in section five hundred and ninety-one." Section 591 provides that, when a district judge is prevented by any disability from holding a district or circuit court in his district, a district judge of 'another district may be designated and appointed "to hold said courts, and to discharge all the judicial duties of the judge so disabled." Section 592 provides that, where there is an accumulation or urgency of business in any district, the circuit justice or circuit judge"May designate and appoint the jndge of any other district in the same circuit to have and t'xercise within the district first named the same powers that are vestel! in the jUdge tht-'Jeof; and each of the said district jndgf's may, in case of such appointment, hold separately, at the same time, a district or circuit court in such district, and discharge all the jUdicial duties of a district judge therein; but no such judge shall hear appeals from the district court."

Section 614 of the Revised Statutes provides that..A district jUdge sitting in 8 circuit con rt shall not gi ve a vote in any case of appeal or !'fror from hiB own decision, but may assign the reasons for such decision: provided, that sllch a caUSe may, .by consent of parties, be heard and disposed of by him when holding a circuit court sitting alone. When he holds a circuit court With either of the other jUdges, the jUdgment or dt-'cree in such mist'S shall be rendered ill conformity with the opinion of the presiding justice or judge." ,
It is believed these are all the statutory provisions bearing directly on this question. These sections are to be taken together, and construed as if they were one law. So construed, the law is that the district judge of one district, appointed to hold, a circuit court in another district, ie invested with the same powers that are vested by law in the judge of the district in which the court is held, and may discharge all the jUdicial duties of such judge in the circuit court. In holding the circuit court, he sits as a district, and not as a circuit, judge. The statute clothes him with the jurisdiction" to discharge all the judicial duties of the judge" of the district in which the court is held, and not all the judicial duties of. a circuit judge. Embarrassment may sometimes result from the present state of the law on this subject. .For instance, if the district judge of the district where the court is held and the district judge assigned to his aid sit together in the trial of a cause in the circuit court, and there is a difference of opinion between them as to any question arising in the trial of the cause, or as to what judgment shall be rendered, there is no statute declaring whose opinion shall prevail. There is, indeed, no statute saying in terms that they shall or may sit together. Section 592 authorizes them to" hold separately, at the same time, a district or a circuit court;" and, by section 596,the assigned judge is authorized "to hold a district or circuit court in the place or in aid" of the judge of the district.! The statute declares whose opinion shall prevail when the court is II held by a circuit justice. and a circuit judge or, It district judge, or bya circuit judge aDd a judge ;"but no two district judges. provision is made forcR diflerence of.opinioll

820
\

FEDERAL REPORTER,

vol. 43.

Sectioll .660,Rev. St. U. S. Nor is there any provision fora certificate of division ()f opinion between two district judges, as there is in a case of a difference of opinion between "a circuit justice and a oircuit judge , or a district judge, or by a circuit judge and a district judge." Sections 652 and 693, Rev. St. U. S. It was early decided that a district judge could not sit in the circuit court on a writ of error from his own decision,( U. S. v.Lancaater, 5 Wheat. 434;) and by chapter 20 of the act of the 2d of April, 1852, (10 U. S. St. 5,) embodied in section 592 of the Revised Statutes, it was enacted, in reference to judges assigned to hold court in districts other than their own, under that statute, that "no such district judge shall hear appeals from the district court." But by the later act of March 2,1867, (chapter 185. § 2, 14 U. S. 545,) it was provided that a cause appealed from the district to the circuit court ·might, by consent of parties, "be heard and disposed of by the circuit court held by the district judge," in the absence of the associate. justice a11otte<1 to the district. This act, with some others,is incorporated in section 614 of the Revised Statutes. This act, the supreme court say, was enacted "in order to prevent failure or delay of justice." U.8. v. Emholt. 105 U. S. 414. Undertheprovisions of section 614, a district judge holding the circuit court, sitting alone, may, by consent of parties, hear and decide an appeal or writ of error from his own decision. If the district judge of the district, when holding the circuit court, may hear' and decide an appeal or writ of error from the district court by the consent of the parties, undoubtedly the district judge assigned to hold the circuit court in that district may do the same. The assigned judge is, as we have seen, invested with all the powers and jurisdiction of the judge of the district. This includes the power to hear and decide, by consent of parties, any cause pending in the circuit court on appeal or writ of error from the district court. It would be a singularly anomalous condition in the law if the district judge of the district, holding a circuit court, could, by consent of the parties, hear an appeal or writ of error from his own decision in the district court, and a district judge of another district, appointed to hold the same circuit court, could not l by consent of the parties. hear. appeals and wri 1$ of error from the decisions of the judge of that district. There would seem to be more reason for denying the exercise of this appellate jurisdiction to the judge who decided the case in the court below than to one who had no previous knowledge of the same. The parties have a right to have their appeal or writ of error heard by the circuit justice or the circuit judge, and to have their cause continued until such a hearing can be had; but it is competent for them by consent to submit to a hearing before the district judge who tried the cause in the district courtj or before a district judge assigned to hold the court "in the place or in aid of" such judge. The statute is silent as to how such consent shall be givrr. or proved,but there can be but little doubt as to the proper rule. Where the record shows that the parties appeared and argued and submitted their case, it will be presumed that they did so voluntarily, and by consent. Whether that presumption is conclusive, it is not necessary in

FOSTER'll. BALLENBERG.

821

case to decide. See The Alaska, 35 Fed. Rep. 555, 557. In this case the consent is not denied but admitted. It is expressly stated in the agreed statement of facts that the "cause and the errors alleged were submitted" to Judge PHILLIPS "on motion of plaintiff in error, and with the consent of the United States of Ainerioa." Let the judgment of Judge PHILLIPS in the case be entered of record as of the date it was made.

A preliminary injunction will not be granted to compel'the lessees ,of' an opera-, houSe to allow the, complainants to use the house in a6cordance with· 8 'contract· therefor, ,where such injunction would compel the lessees to bl'/3ak II! ,l:!imilar tract' made by them with an innocent third party, apd the complainants cannot use the house with profit tothemaelves. '
I

SAGE, J., (oraUy.) The bill was filed yesterday, and motion, for a preliminary injunction argued. The complainants aver that on the day of August, 1890, they entered into a contract in, writing with the defendant Louis Ba1lenberg, who signed itby the hand ofPaulF. Nich-, olson, ap;ent, imd who, although Cflntracting in his own name, '\VB.S act-. ing for, himself and his co-defendant, Powell Crosley, whereby it was agreed ,that the complainants, being proprie,tors and managers of an opcompany known as the "Boston Ideal Opera Company," should, on November 3, 1890, begin the rendition of the opera of "J.i'll.uvette" in, the hall of the opera-house'in Cincinnati known, as" Pike's Opera-aouse," of whiCll'the defendants Crosley and Ballenberg were in possession as lessees or otherwise, having full control thereof, and power to let the, .same for the pilrposes contemplated by the said contract. The bill avers - that by the of the contract said performances. should begin on the 3d day of Noveniber, 1890, and continue until Saturday, NqveDlber 8, inclusive; there being one performance each day, and one matinee.' After setting forth the details of the contract, which provided, among -other things,that the complainants should receive 70 per centum and. defendants 30 per centum of the gross proceedsof said performances,] the complainl;lnta aver that said opera-house has not for several years. been used as an opera-house or theater, that it was being remodeled and refitted, and that it was to be reopened as an opera-house on,the: ,date .aforesaid, of said first performance, and that it was in ,the, 'rendition of the opera of by the c,Qmplain-' .ap.m, .-,WIth theIr '.. . .... .. ;.:" company, should be th,e fir$,tperformance t.opllgiven, . ... .' .. ·
u